CONDITIONS OF SALE

-----BORDAR TILE WHOLESALER CC. (Hereinafter referred to as “the Creditor”)

The under mentioned conditions of sale shall govern all dealings whether for cash or credit between the Creditor and the Purchaser for Credit Facilities reflected overleaf (hereinafter referred to as  “the Purchaser”) and shall prevail notwithstanding any terms, conditions or stipulations contained in the Purchaser’s order or elsewhere that may be in conflict herewith.

1. ORDERS

(a) Orders shall be executed at the discretion of the Creditor and the receipt by the Creditor of an order shall not oblige the Creditor to supply or sell the goods ordered to the Purchaser.

(b) All conditions, terms or stipulations contained in the Purchaser’s order which are in conflict with the Conditions of Sale of the Creditor shall be deemed to be pro non scripto and the execution of such an order by the Creditor shall not have the effect of binding the Creditor to such conflicting conditions, terms or stipulations.

2. QUANTITIES

(a) All orders not in full package quantities will be dispatched to the next higher full package.

(b) Non-standard items may be subject to a possible 5 percent over or under run and purchasers should therefore make allowances for such eventualities. Over runs will be chargeable.

3. PRICES

(a) All quoted prices and printed price lists are subject to alteration without prior notification to the Purchaser.

(b) Possession of Price Lists by the Purchaser shall not be interpreted as an offer by the Creditor to sell the goods listed at the prices stated.

(c) All goods will be invoiced at the ruling prices as reflected in the Creditor’s price list as at the date of dispatch.

(d) Price lists and quoted prices are based on the full quantities and standard sizes specified in such lists and any variation in quantity, size, specification or other variation requested by the Purchaser shall entitle the Creditor to adjust the prices at its discretion and such adjusted prices shall be binding on and shall be deemed to have been accepted by the Purchaser as the Creditor’s usual, alternatively fair and reasonable price s for the goods sold.

(e) Quotations for special items and conditions must be accepted in writing within 7 days from the official quotation and must refer to the Creditor’s contract number when placing the order.

(f) Should the Creditor at any time agree to grant any discount off its list prices, such discount is only granted on the basis that the Creditor reserves the right to withdraw the discount at any time and at its sole discretion?

4. PAYMENT  TERMS

(a) The decision whether or not to grant credit facilities to the Purchaser and the extent of such facilities shall be taken solely at the discretion of the Creditor and any credit facilities granted, may be revoked or reduced by the Creditor at any time without notice.

(b) Where credit is provided, the Purchaser undertakes to provide the creditor with copies of its most recent financial statements at any time that the Creditor requests copies of such financial statements.

(c) Payment shall be made in cash deposit or by electronic transfer with order, unless credit facilities have been granted by the Creditor and are in force, in which event payment shall be made no later than 30 days after date of statement.

(d) All 30 day credit account payments are due on or before the 7th of every month. Any payments made on the 8th and after will be regarded late, therefore resulting in 2.5% interest being added to your account.

(e) If we have not received all due payments by the 7th, your account will be placed on hold until full settlement is made.

(f) Payment will be deemed to have been made only when the amount of the payment is correctly reflected as a credit in the banking account of the Creditor and provided that the amount is in fact paid.

(g) Not withstanding the fact that a number of separate deliveries may constitute one order, each delivery shall be invoiced on dispatch thereof and each invoice shall be deemed to be a separate account and shall be payable accordingly.

(h) Accounts could be placed on “stop supplies” in the event that payment is made more than 30 days after the date of statement.

(i) In the event of the Purchaser defaulting on any payment due and/or failing to make any payment timeously and/or committing any  act of insolvency and/or assigning or surrendering his/its rights and/or suffering any default judgment against him/it which remains unsatisfied for more than 14 days and/or being sequestrated, liquidated or placed under judicial management or otherwise wound up, whether provisionally or finally and/or entering into any compromise with any of his/its , then the Creditor shall have the right, without prejudice to any other rights which it may have at law or in terms of this Agreement, to discontinue supplies and to claim immediate payment of any and all amounts outstanding whether or not payment of such amounts would otherwise be due and owing, together with costs and interest as set out hereunder which may have accrued on such amount and which amount shall in such event immediately become fully due, owing and payable.

(j) In the event of the Purchaser failing to make payment of any amount owing to the Creditor on the due date for such payment, the Purchaser shall, in addition to such amount, pay to the Creditor interest thereon from due date to date of payment calculated at a rate equivalent to the prime overdraft rate charged by Standard Bank, North Cliff, from time to time.

(k) A certificate signed by any manager or director of the Creditor of the Creditor stating the Purchaser’s indebtedness, including interest, as at the given date shall be prima facie proof of the amount and validity of such indebtedness for the purpose of all legal proceedings instituted by the Creditor against the Purchaser.

(l) Ownership of the goods sold shall only pass to the Purchaser on receipt by the Creditor of all amounts owing by the Purchaser to the Creditor, whether arising from such sale or from any other transaction. Prior to payment of the aforesaid amount, ownership of the goods shall continue to vest in the Creditor.

(m) If the account is inactive for a continuous period in excess of six months, it will automatically be reviewed, and may after consultation, be closed.

(n) In the event of the Purchaser failing to make payment within 30 days for more than three consecutive periods, or six periods in any year, without prior arrangements, the account will automatically be reviewed and may be closed.

(o) Payment, shall only be deemed to have been effected when received in cash at the Creditor’s principal place of business, alternatively when any cheque sent to the Creditor is received by the Creditor, deposited an then honored. Save as aforesaid:-

(i) Should the Purchaser elect to use the postal services for payment, it does so at its own risk and the theft of such payment and/or its failure to arrive timeously falls on it, and;

(ii) No indulgence granted by the Creditor, and no acceptance of payment by the Creditor other than in the form as prescribed above shall constitute a waiver or a negation by the Creditor of its rights in terms hereof.

5. CONSENT TO CREDIT CHECKING

The Purchaser hereby acknowledges and agrees that:

(a) The Creditor may carry out a credit check with one or more licensed credit agencies, which will retain a record of that search.

(b) In the event of this account going into default, relevant details will be recorded with a credit agency. Such recorded information may be used by other lenders in assessing any application for credit by the Purchaser and members of the Purchaser’s household, and for occasional debt tracing and fraud prevention purposes.

(c) The existence of this account may be recorded with a credit agency.

(d) Details of how the accounts is conducted by the Purchaser will be recorded with a credit agency and may be shared with other lenders for the purpose of assessing further applications for credit by the Purchaser and members of the Purchaser’s household, and for occasional debt tracing ad fraud prevention purposes.

(e) The company may search the files of a credit agency, which will keep a record of that search.

(f) This information may be used by the Creditor in assessing future credit applications by the Purchaser and members of his household, and for occasional debt tracing and fraud prevention.

(g) Where this account is in arrears, or any outstanding sum is not liquidated in full on due date, the Creditor is hereby irrevocably authorized, without further reference or notice to the Purchaser to disclose such arrears or failure to a credit bureau.

6.   DELIVERY

(a)   Unless otherwise specified, goods will be delivered as soon as possible after receipt of order, however, orders are accepted subject to delays due to availability of labour and/or materials or other causes beyond the Creditor’s control and no liability whatsoever shall attach to the Creditor for failure to deliver the goods on due date.

(b)   Time of delivery and availability are subject to alteration without prior notice.

(c)    All delivery excludes offloading. It’s the responsibility of the customer to ensure the delivery vehicle is offloaded within one hour; Delivery will not happen if there is no forklift or enough labor of offloading if the vehicle is being delayed for more than hour, an amount not exceeding ZAR500.00 standing time will become applicable for every hour delayed.

(d)    The Creditor shall not be liable for any damage of any nature when goods have been transported by carriers of their own choice.

(e)    It is specifically recorded that all risks in and to the goods shall pass to the Purchaser on delivery.

(f)    The Creditor will not accept return of any goods unless by prior written consent and a 10% handling charge will be levied on returns.

(g)   The Creditor shall not be liable for damages, whether direct or indirect, consequential or otherwise as the result of any defect in the goods or delay in delivery or arising from any cause whatsoever.

7.    COLLECTION

(a)    No claims will be considered after products sold by Creditor have been installed.

(b)    All paid stock must be collected /delivered within seven days. Stock still at Creditor’s facilities after seven days will be charged ZAR25.00 per Ton per week or part thereof.

(c)    Creditor will only accept claims with 48 hours of collection/delivery. Claim must be report with all relevant documentation as required.

(d)    All amount due to Creditor and payable are settled on the due dates are per the agreement.

(e)    If the purchaser uses a third party to transport it shall be acceptable proof of delivery by Creditor. The signature of the purchaser or third party transporter shall be conclusively deemed to the signature of duly authorized agent of the purchaser.  

8.    DAMAGE CLAIM

(a)    Standard for percentage breakage in the ceramic industry equates to 1%; any breakage over and above will be consider for replacement at the Creditor’s discretion.

(b)    Proof of breakage\damage must be produced on demand within three working days of receipt of goods.

(c)    Not claims will be entertained after the three days period.

(d)    Ensure that all goods are check on receipt.

9.    RETURN

(1)    All return are subject to a 10% handing fee and are accepted if made within 14days of purchase. After 14 days a 50% handing fee will become applicable, no returns will be accept after 30days.

(2)    Return stock will only be accepted if it is in the original packaging.

(3)    The Creditor requires the original invoice and proof of delivery note when returning or exchanging the stock;

(4)    The Creditor should be informed first before return.

(5)    All returns are subjected to a transport charge as applicable if collect from customers.

7.     CARRIAGE

(a)    Prices quoted to the Purchaser do not include delivery or carriage charges.

(b)    When material is collected by the Purchaser from the Creditor the risk in and to the goods shall pass to the Purchaser on collection thereof.

(c)    Where delivery and/or carriage are arranged by the Creditor, the mode of transport shall be at its option and may be either:

     (i) By rail transport to the address stated on the Purchaser’s order, and subject to the railway’s conditions and charges which will be payable by the Purchaser; or

     (ii) By road transport to the address stated on the Purchaser’s order and which charges will be payable by the Purchaser; or

(iii) By sea route, if appropriate, and which charges will be payable by the Purchaser.

(d)    The goods will be deemed to have been delivered when handed to a carrier in the usual course for conveyance.

(e)    All costs of delivery shall be payable by the Purchaser.

(f)    Off-loading of the goods from the Creditor road vehicles shall not exceed 4 hours and, in the event that this time period is exceeded, then demurrage will be charged to the Purchaser at the effective rate.

(g)    Selection of the carrier shall be at the Creditor’s discretion.

(h)    No transport discount will be allowed on material collected from the Creditor’s works, unless otherwise specified.

8.    INSURANCE.

Unless advised to the contrary, all goods delivered by the Creditor whether by rail, road or sea will be insured and the costs of such insurance shall be for the Purchaser’s account and shall be charged at the usual rate charged by the insurance company concerned at the relevant time.

9.     PURCHASER’S BUSINESS

     Should the Purchaser change its name or dispose of the business to a third party at any time:

(a) The Purchaser undertakes to notify the Creditor in writing of the change of name , alternatively the name and address of the third party to whom the business has been disposed as the case may be , and

(b) The rights, terms and conditions as contained in this document shall be binding on the Purchaser notwithstanding the disposal of the business to the third party until such time as the third party has assumed the liabilities of the Purchaser towards the Creditor in a manner acceptable to the Creditor.

10.   ATTORNEY CLIENT COST:  

     In the event of any action being instituted by the Creditor against the Purchaser, the Purchaser agrees to pay any and all legal costs incurred by the creditor, including all costs on the scales as between attorney and on client, collection commission, tracing costs and all other ancillary charges or expenses relating to such action.

11.   DOMICILIUM CITANDI ET EXECUTANDI

     The Purchaser chooses as its domicilium citandi et executandi for all purposes hereunder the physical address of the trading entity appearing on the face of the credit assessment form on the reverse hereof.

12.   MAGISTRATE’S COURT JURISDICTION

     The Purchaser by its signature hereto hereby irrevocably consents to the jurisdiction of the magistrate’s court notwithstanding the fact that the amount being claimed by the Creditor may otherwise exceed the jurisdiction of the Magistrates Court. The Creditor shall, however, not be obliged to proceed in the Magistrates Court and shall at its election be entitled to proceed in any other competent court having jurisdiction.

13.   No warranties, representations or guarantees have been made by the Creditor or on its behalf which may have induced the purchaser and/or the surety to sign this document.

14.   The signatory/s hereby renounces the benefits of excussion, division and revision of accounts and acknowledges that I /we are fully aware of the meaning and effect of such renunciations.

15.   The signatory/s further bind himself/themselves jointly and severally as surety and co-principal debtor in solidum with the Purchaser unto and in favour of the Creditor, its order or assigns, for the due performance by the Purchaser for all its obligations to the Creditor as set out in the Personal surety attached hereto.

WE ACKNOWLEDGE HAVING READ THE ABOVE TERMS AND CONDITIONS, AND WITHOUT LIMITING THE GENERALITY THEREOF, ESPECIALLY CLAUSE 15, AND AGREE TO BE BOUND BY ALL SUCH TERMS AND CONDITIONS. THESE TERMS AND CONDTIONS REFER TO ANY ONE OR ALL OF THE CREDITORS AS THE CASE MAY BE.